| Matter of McNulty v Fischer |
| 2008 NY Slip Op 01893 [49 AD3d 946] |
| March 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Thomas McNulty, Petitioner, v Brian S. Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which found petitionerguilty of violating a prison disciplinary rule.
As a result of having attempted to walk away from the prison's medication window withmedication hidden under his tongue, petitioner was charged in a misbehavior report with, amongother things, smuggling. Following a tier III disciplinary hearing, he was found guilty of thatcharge. The determination of guilt was affirmed upon administrative appeal and this CPLRarticle 78 proceeding ensued.
We confirm. Contrary to petitioner's assertion, the determination in issue is supported bysubstantial evidence in the form of the misbehavior report and hearing testimony from the nurseinvolved in the incident (see Matter of Bonez v McGinnis, 305 AD2d 814, 815 [2003]).To the extent that the record contains conflicting evidence, credibility issues were created forresolution by the Hearing Officer (seeMatter of Roman v Selsky, 42 AD3d 721, 721 [2007], lv denied 9 NY3d 815[2007]). Petitioner's remaining contentions, including his claim that the misbehavior report wasnot issued in a timely manner, have been considered and found to be unavailing.[*2]
Cardona, P.J., Peters, Rose, Lahtinen and Kane, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.